Supreme Court to hear FCC f-bomb appeal on Election Day

The whole world will be watching the US presidential elections on November 4. …

On Tuesday, November 4, while millions of Americans cast their ballots in one of the most important presidential elections in United States history, there's a good chance that more than a few cuss words will be exclaimed in and out of voting booths. How appropriate, then, that the Supreme Court will hear oral arguments for FCC vs. Fox Television Stations on that very day. The case will decide whether "fleeting expletives"—potty talk said on the fly—can be broadcast on television and radio.

Specifically, the high court will consider (PDF) whether New York's Second Circuit Court of Appeals "erred" in whacking an FCC decision to sanction obscene and indecent language "when the expletives are not repeated."

To quickly recap: In 2006 the FCC cited Fox Television for its broadcasts of Cher and Nicole Richie peppering their prose with "fuck," "fucking," and "shit," during the 2002 and 2003 editions of the Billboard Music Awards. This was a new policy, because the dirty words in question had been said rather quickly, and had not been repeated, thus their being called "fleeting expletives." But several years earlier, following Bono's famous declaration at the Golden Globes Awards ("this is really, really fucking brilliant"), the FCC had warned that now, even this level of nasty talk would be considered indecent.

Fox took the matter to the Second Circuit Court of Appeals, whose majority agreed in June of last year that the Commission had not adequately explained why it had abandoned its earlier tolerance for one-time-only cuss words. This violated the Administrative Procedures Act's prohibition against "arbitrary and capricious" behavior by government agencies, the court ruled. The FCC then appealed the decision to the Supremes, who will consider the question as Barack, John, Sarah, and Joe wage the Final Battle.

A terrible mistake

The New York Times mentioned this impending First Amendment showdown in its editorial page on Monday, arguing that the FCC's new policy punishes free speech. "We hope the court sides with the broadcasters," the Times concluded.

Three former Commission Chairs have weighed in on the matter, albeit one indirectly. In early August, Newton Minow and Mark Fowler (Kennedy and Reagan guys, respectively) sent an amici curiae brief to the court, begging the Supremes to put the kabosh on what they call the FCC's "Victorian crusade." "The indecency controls that began as a limited tool for reining in a small number of provocative broadcast personalities and irresponsible licensees have become a rallying cry for a revival of Nineteenth Century Comstockery," they wrote.

More recently, FCC Chair Kevin Martin's immediate predecessor Michael Powell said that he now regrets having approved the decision to declare Bono's comments indecent. "It was a terrible mistake and I voted for it," Powell said at a forum on the Commission held in mid-September.

Wahhhh! Holy [bleep]!

An assortment of pro-decency groups have filed amicus curiae briefs with the Supreme Court on this case, including the Parents Television Council, which continues to pursue fleeting expletive scofflaws with great passion. The PTC's latest crusade involves getting the FCC to sanction NBC after a skydiver on the Today Show used a bad word to describe one of his less successful exploits. On September 11, host Matt Lauer asked daredevil Hans Lange what his reaction was to crash-parachuting into a mountain wall from thousands of feet in the air. "I was pretty angry with myself," Lange replied. "I was like... wahhhh! Holy shit!"

The PTC is urging its members to complain to the FCC about this blunder (the s-word, not the crash). "We condemn NBC for its arrogance in choosing not to bleep this profanity, and for its arrogance in choosing not to apologize to its viewers, many of whom included children," PTC President Tim Winter declared.

Ars Technica e-mailed a representative of the PTC asking whether it was appropriate to encourage people who may not have viewed the program to file complaints about it. We also asked how this Today Show episode harms TV watchers, especially those who did not see the interview. We received no reply.

Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar